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Friday, April 18, 2014

Three (and a Half) Takes on Animus

I have a "jot" on Jotwell today about Steve Smith's forthcoming piece, The Jurisprudence of Denigration, which offers a critical but (and?), I think, very intriguing take on the use of animus in United States v. Windsor. As I say in the jot, hopefully correctly, one may support the outcome in Windsor and still think that Smith offers some useful and provocative comments on why contemporary constitutional and moral discourse may lend themselves to the use of animus rather than alternative forms of argument in this area. I suspect that Steve and I may often have sharply different views on some of the underlying issues here and elsewhere, but I always find his work productive and disturbing.

It's an interesting coincidence that this jot appears a couple of days after I noticed a new paper by Dale Carpenter, Windsor Products: Equal Protection From Animus, forthcoming in the Supreme Court Review. I haven't read it thoroughly yet, but so far I find it a clearer and better description and defense of the concept of animus than much I have seen elsewhere, and certainly than Justice Kennedy's own writing on the subject. I look forward to reading the whole thing more carefully. It's not up on the website yet, but I should also note that the Harvard Law Review's latest issue has a good package of pieces on developments in this legal area, with a clear and lovely scene-setting introductory piece (although I'm not convinced that President Obama was the right person to quote at its conclusion) and an interesting chapter on, again, animus. Also recommended.

Comments

The piece references the allegation that Windsor suggests that Congress was "acting from pure malevolence" and this reflects a viewpoint even among some who support Windsor -- a concern the ruling colors the opposition too darkly.

But, the actual text of the opinion doesn't speak of "pure malevolence" which sounds like Lord V. from Harry Potter or something. To quote:

"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."

The law does assume the class in question is lesser -- e.g., a basic thing like marriage is not fit for them, at least in respect there for federal benefits. I know the "hate the sinner, love the sinner" idea, but sorry, that is on a basic level a bare desire to harm a class of people because a thing basic to their nature and actions is deemed immoral. Pointing this out at times upsets people since they think you are making them out to be meanies. Sorry about that.

Still, it is not the same thing as "pure malevolence" and moving past selective quotation to the full context of the opinions where the animus is cited, this is made clear. I did not read the full article cited, but that raised a red flag for me.

An animus test is case-by-case and doesn't create a rule, so it allows the Court to reach results in individual cases without triggering dramatic upheaval in other areas.

Posted by: Orin Kerr | Apr 18, 2014 2:20:03 PM

My primary problem with Smith's account (at least when I last read it in draft form) is that it does not seem to acknowledge that viewing animus narrowly as "moral disapproval" or "bigotry" ignores other, viable interpretations of the doctrine, and unnecessarily cabins the concept. Further, this narrow interpretation risks under-appreciating the way in which the doctrine of animus might contribute to the future of equal protection jurisprudence as an alternative to the dysfunctional tiers-of-scrutiny and suspect classification doctrines.

As I have previously argued, there are undeniably multiple versions of animus, some much broader than the "fit of spite" model promoted by Justice Scalia. And yet it is possible to resolve those multiple interpretations into a single, coherent and vigorous doctrine. If anyone is interested in reading more on that point:

In my view there is a great deal to be lost to the law of equal protection if the concept of animus is reduced down to a form of impermissible subjective intent, similar to discriminatory intent in the cases of non-facial classifications. Both scholars and the courts have a role in thoroughly exploring the potential of the doctrine.

Posted by: Susannah Pollvogt | Apr 18, 2014 2:22:22 PM

@Orin - I think it is an open question whether animus requires a fact-intensive inquiry or can be determined through a facial examination of the law--the cases go both ways. It is interesting the extent to which the animus issue is being addressed at the summary judgment stage in many of the pending marriage equality cases. The CTA judges in the Utah case actively questioned plaintiffs' counsel re: whether animus is something that could be determined on motions for summary judgment as opposed to following a trial. (She contended that it was possible to determine absent a trial.)

Posted by: Susannah Pollvogt | Apr 18, 2014 2:49:32 PM

Susannah, my point is that the Justices can do whatever they want with an animus test. It's true that this creates puzzles for lower court judges trying to apply Supreme Court doctrine. But that's of limited significance, as the Supreme Court will end up reviewing most/all of the lower court cases anyway.

Posted by: Orin Kerr | Apr 18, 2014 5:14:01 PM

I suppose it is simply my hope that the next Justice to write on the doctrine might articulate animus as something a bit more principled, stable and knowable. And I think/believe/hope the lower courts can have an influence on the evolution of the doctrine in that direction.

Posted by: Susannah Pollvogt | Apr 18, 2014 6:37:23 PM

"the Justices can do whatever they want with an animus test"

This makes it different from a range of constitutional principles, how, I wonder. Perhaps, a general point is being made. Non-animus tests for equal protection also have a range of possibilities. Justice O'Connor noted even strict scrutiny need not be "fatal in fact." The 4A with its 'reasonable' standard is pretty flexibility. Scalia has been quite critical as to the application of Establishment Clause tests. etc.

Perhaps, there too the "test" doesn't really provide a "rule," though the unwary might wonder what a "test" is if not in some fashion a "rule."